Rehau Polymers Private Limited, Pune V. Deputy Commissioner of Income tax, Pune

CO 27/PUN/2017

• Counselvise Citation: [2017] 119 COUNSELVISE.COM (IT) 3401 (ITAT-PUNE)
• Duration Of Justice: 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 14-06-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 18-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Transfer pricing; International transaction; Initiation of penalty proceedings
• Section: 143(3); 234B; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 566 /P U N/20 1 5 / ASSESSMENT YEAR : 20 10 - 11 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 10, PUNE . / APPELLANT VS. M/S. REHAU POLYMERS PVT. LTD., KHED - PAWAL ROAD, HOTEWADI RAJGURU NAGAR, TEJ KHAND, PUNE - 4 10505 . / RESPONDENT PAN: AAACR7521E . /CO NO. 27 /P U N/201 7 / ASSESSMENT YEAR : 20 10 - 11 (OUT OF ITA NO. 566 /P U N/201 5 ) M/S. REHAU POLYMERS PVT. LTD., KHED - PAWAL ROAD, HOTEWADI RAJGURU NAGAR, TEJ KHAND, PUNE 410505 / CROSS OBJECT OR PAN: AAACR7521E VS. THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 10, PUNE . / RESPONDENT ASSESSEE BY : S HRI NIKHIL PATHAK REVENUE BY : SHRI RAJ EE V KUMAR, CIT ITA NO. 566 /P U N/20 1 5 CO NO. 27 /P U N/201 7 2 / DATE OF HEARING : 24 . 05 . 201 7 / DATE OF PRONOUNCEMENT: 14 .06 .201 7 / ORDER PER SUSHMA CHOWLA, J M : THE APPEAL FILED BY THE REVENUE IS AGAINST ORDER OF D CIT , CIRCLE - 10, P UNE , DATED 27.02.2015 RELATING TO ASSESSMENT YEAR 20 10 - 11 PASSED UNDER SECTION 143(3) R.W.S. 144C(13) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . THE ASSESSEE HAS FILED CROSS OBJECTIONS AGAINST THE APPEAL OF REVENUE. 2 . T HE APPEAL FILED BY THE REVENUE AND CROSS OBJECTIONS FILED BY THE ASSESSEE WERE H EARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE REVENUE IN ITA NO. 566 /P U N/20 1 5 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE HONBLE DRP WAS J USTIFIED IN HOLDING THAT NOTICE U/S.143(2) WAS NOT SERVED ON THE ASSESSEE WHEN AO HAS ISSUED NOTICE ON THE LAST KNOWN ADDRESS VIDE RPAD WITHIN DUE DATE WHICH IS THE STATUTORY REQUIREMENT FOR ISSUANCE OF NOTICE? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE HONBLE DRP WAS JUSTIFIED IN HOLDING THAT NOTICE U/S.143(2) WAS NOT SERVED ON THE ASSESSEE WHEN ASSESSEE HAD ATTENDED AND CO - OPERATED WITH ALL ASSESSMENT PROCEEDINGS WITHOUT RAISING ANY OBJECTION REGARDING SERVICE OF NOTICE U/S.143(2), WHEN THE ISSUE IS CURABLE U/S.292BB OF THE I.T. ACT? 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE HONBLE DRP ERRED IN NOT GOING INTO THE MERITS OF THE ADDITIONS MADE AS PER LAW. 4. THE ASSESSEE IN CO NO.27/PUN/2017 HAS RAISED THE FOLLOWING GROUNDS OF O BJECTIONS: - ITA NO. 566 /P U N/20 1 5 CO NO. 27 /P U N/201 7 3 ON FACTS AND IN LAW, 1] THE ASSESSEE COMPANY SUBMITS THAT WITHOUT PREJUDICE ITS STAND THAT NO NOTICE U/S.143(2) WAS SERVED ON IT WITHOUT THE TIME PRESCRIBED UNDER THE SAID SECTION, IT IS SUBMITTED THAT SINCE THE ASSESSMENT ORDER HAS BEEN PAS SED WITHOUT FOLLOWING THE PROCEDURE LAID DOWN IN SECTION 144C, THE ASSESSMENT ORDER PASSED BE DECLARED NULL AND VOID. 2] THE ASSESSEE SUBMITS THAT THE LEARNED A.O. ERRED IN ISSUING ASSESSMENT ORDER ALONG WITH NOTICE OF DEMAND U/S. 156 AND NOTICE U/S. 274 R.W.S. 271(1)(C) INSTEAD OF DRAFT ASSESSMENT ORDER AND HENCE, SINCE THE PROCEDURE LAID DOWN IN SECTION 144C WAS NOT FOLLOWED BY THE LEARNED A.O., THE ASSESSMENT ORDER PASSED BE HELD INVALID IN LAW. 5. THE REVENUE IS AGGRIEVED BY THE ORDER OF DISPUTE RES OLUTION PANEL (DRP) IN HOLDING THAT THE NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT WAS NOT SERVED UPON THE ASSESSEE, WHEREIN THE ASSESSING OFFICER HAD ISSUED THE NOTICE ON THE LAST KNOWN ADDRESS OF THE ASSESSEE. 6. THE ASSESSEE VIDE CROSS OBJECTION N O.1 HAS RAISED THE ISSUE THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS SERVED UPON THE ASSESSEE WITHIN PRESCRIBED TIME. FURTHER, VIDE CROSS OBJECTION NO.2, THE ISSUE RAISED BY THE ASSESSEE IS AGAINST THE ORDER OF ASSESSING OFFICER IN ISSUING THE ASSE SSMENT ORDER ALONG WITH NOTICE OF DEMAND UNDER SECTION 156 OF THE ACT AND NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT, INSTEAD OF DRAFT ASSESSMENT ORDER. HENCE, THE PROCEDURE LAID DOWN IN SECTION 144C OF THE ACT WAS NOT FOLLOWED BY THE ASSESSING OFFICER AND THE ASSESSMENT ORDER WAS INVALID IN LAW. 7. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.1,77,77,012/ - . THE CASE OF ASSESSEE WAS SELECTED FOR SCRUTINY. THE FIRST ISSUE WHICH ARIS ES IN THE PRESENT APPEAL IS AGAINST NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT. HOWEVER, WITHOUT GOING INTO THE MERITS OF THE SAID ISSUE, WE FIND THAT THE ASSESSING OFFICER HAD MADE REFERENCE ITA NO. 566 /P U N/20 1 5 CO NO. 27 /P U N/201 7 4 UNDER SECTION 92CA(1) OF THE ACT TO THE TRANSFER PRICING OFF ICER (TPO) TO DETERMINE THE ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTIONS UNDERTAKEN BY THE ASSESSEE. THE TPO VIDE ORDER PASSED UNDER SECTION 92CA(3) OF THE ACT DATED 24.01.2014 APPLIED CUP METHOD AND DETERMINED THE ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTIONS OF PAYMENT OF SERVICE FEES AT NIL AS AGAINST RS.3,45,55,434/ - DETERMINED BY THE ASSESSEE. THE ASSESSING OFFICER PASSED THE DRAFT ASSESSMENT ORDER UNDER SECTION 143(3) R.W.S. 144C(1) OF THE ACT DATED 22.03.2014 AND ASSESSED THE INCOME AT RS.9, 65,31,058/ - ON ACCOUNT OF ADJUSTMENT MADE AS PER ORDER UNDER SECTION 92CA(3) OF THE ACT AND VARIOUS OTHER ADDITIONS. THE ASSESSING OFFICER VIDE PARA 11 OBSERVED THAT THE INCOME WAS ASSESSED UNDER SECTION 143(3) R.W.S. 144C(1) OF THE ACT AT RS.9.65 CRORES. HE ALSO DIRECTED CHARGING OF INTEREST UNDER SECTIONS 234A, 234B, 234C AND 234D OF THE ACT, AS APPLICABLE. HE FURTHER DIRECTED ISSUE ORDER, DEMAND NOTICE ALONG WITH ITNS - 150 , ISSUE NOTICE UNDER SECTION 271(1)(C) OF THE ACT. HE FURTHER HELD THAT THE ORDE R WAS A PROPOSED / DRAFT ORDER OF ASSESSMENT PASSED UNDER SECTION 143(3) R.W.S. 144C(1) OF THE ACT AND HE FURTHER HELD THAT THE ASSESSEE SHALL WITHIN 30 DAYS OF THE RECEIPT OF THIS DRAFT ORDER FILE ACCEPTANCE OF VARIATIONS TO THE UNDERSIGNED OR FILE ITS OB JECTIONS AGAINST SUCH VARIATIONS WITH THE DISPUTE RESOLUTION PANEL UNDER INTIMATION TO THE UNDERSIGNED. THE ASSESSEE FILED OBJECTIONS BEFORE THE DRP AND THE ASSESSING OFFICER ALSO ISSUED FINAL ASSESSMENT ORDER UNDER SECTION 143(3) R.W.S. 144C(13) OF THE A CT, DATED 27.02.2015. 8. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS POINTED OUT THAT THE DRAFT ASSESSMENT ORDER PASSED IN THE CASE OF ASSESSEE IS ACTUALLY NOT A DRAFT ASSESSMENT ORDER SINCE THE DEMAND NOTICE ALONG WITH ITNS - 150 HAD BEEN ITA NO. 566 /P U N/20 1 5 CO NO. 27 /P U N/201 7 5 ISSUED AND ALSO NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT WAS ISSUED FOR INITIATION OF PENALTY PROCEEDINGS. HE FAIRLY ADMITTED THAT THOUGH THE ASSESSING OFFICER HAD IN THE SAID ORDER SAID THAT IT IS A PROPOSED / DRAFT ASSESSMENT ORDER BUT IN AC TUAL FACT, IT WAS ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER DETERMINING THE DEMAND PAYABLE IN THE CASE OF ASSESSEE AND HAS ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT BY ISSUE OF NOTICE UNDER SECTION 274 OF THE ACT. THE LE ARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVERED BY THE ORDER OF TRIBUNAL IN SOKTAS INDIA (P) LTD. VS. ACIT (2017) 77 TAXMANN.COM 19 (PUNE TRIB.) 9 . THE LEARNED DEPARTMENTAL REP RESENTATIVE FOR THE REVENUE ON THE OTHER HAND, REFERRED TO THE NOTINGS OF THE ASSESSING OFFICER AND RELIED ON THE SAME. 10 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE WHICH ARISES IN THE PRESENT APPEAL IS IN RELATION TO THE DRA FT ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) R.W.S. 144C(1) OF THE ACT. AFTER RECEIPT OF THE ORDER UNDER SECTION 92CA(3) OF THE ACT FROM THE TPO, THE ASSESSING OFFICER WAS SUPPOSED TO ISSUE DRAFT ASSESSMENT ORDER PROPOSING TO M AKE THE ADDITION. HOWEVER, THE ASSESSING OFFICER CALLED THE SAID ORDER TO BE DRAFT ASSESSMENT ORDER BUT ASSESSED INCOME IN THE HANDS OF ASSESSEE AND FURTHER ISSUED DEMAND NOTICE ALONG ITNS - 150 , AFTER CHARGING INTEREST UNDER SECTIONS 234A, 234B & 234C, ETC . HE ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. UNDOUBTEDLY, THE ASSESSEE ON UNDERSTANDING THAT THE SAME WAS DRAFT ASSESSMENT ORDER, MADE OBJECTIONS TO THE DRP, WHO GAVE CERTAIN DIRECTIONS AND THEREAFTER, THE ASSESSING OFFICER PASSED AN ORDER UNDER ITA NO. 566 /P U N/20 1 5 CO NO. 27 /P U N/201 7 6 SECTION 143(3) R.W.S. 144C(13) OF THE ACT. HOWEVER, IN ORDER TO ADJUDICATE THE ISSUE RAISED, WE NEED TO MAKE REFERENCE TO THE PROVISIONS OF SECTION 144C OF THE ACT. 1 1 . WE FIND THAT SIMILAR ISSUE OF ASSESSMENT TO BE FRAMED UNDER SECTION 143(3) R.W.S. 144C OF THE ACT AROSE BEFORE THE PUNE BENCH OF TRIBUNAL IN SOKTAS INDIA (P) LTD. VS. ACIT (SUPRA). 1 2 . THE TRIBUNAL AFTER NOTING THE FACTS THAT THE ASSESSING OFFICER HAD PASSED THE ORDER UNDER SECTION 143(3) R.W.S 92CA (3) AND 144C OF THE ACT AND HAD ALSO ISSUED DEMAND NOTICE UNDER SECTION 156 OF THE ACT AND HAD ALSO ISSUED NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT. HOWEVER, THE COVERING LETTER SAID THAT IT WAS DRAFT ASSESSMENT ORDER, AGAINST WHICH THE ASSESSEE WAS EITHER T O FILE OBJECTIONS BEFORE THE DRP OR ACCEPT THE SAME. THE ASSESSEE FILED THE OBJECTIONS BEFORE THE DRP, WHO DISMISSED THE SAME ON THE SURMISE THAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS FINAL ASSESSMENT ORDER, SINCE THE ASSESSING OFFICER HAD ALSO IS SUED THE DEMAND NOTICE AND HAD ALSO ISSUED SHOW CAUSE NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT FOR LEVY OF PENALTY. IN VIEW OF THE SAID FACTS, THE TRIBUNAL OBSERVED AS UNDER: - 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. BR IEFLY, IN THE FACTS OF THE CASE, THE ASSESSING OFFICER HAD MADE REFERENCE TO THE TPO VIS - - VIS TO DETERMINE THE ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION ENTERED INTO BY THE ASSESSEE WITH ITS ASSOCIATE ENTERPRISES. THE TPO VIDE ORDER DATED 28.01.201 4 UNDER SECTION 92CA(3) OF THE ACT HAD PROPOSED THE ADJUSTMENT TO ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION AND HAD PASSED THE SAID ORDER. THE ASSESSING OFFICER ON RECEIPT OF SAID ORDER PASSED ORDER UNDER SECTION 143(3) R.W.S. 92C(4) AND 144C OF THE ACT. THE SAID ORDER OF ASSESSING OFFICER WAS FORWARDED TO THE ASSESSEE ALONG WITH LETTER DATED 28.02.2014, WHEREIN THE ASSESSING OFFICER CATEGORICALLY SAID THAT THE DRAFT ASSESSMENT ORDER WAS BEING FORWARDED FOR NECESSARY ACTION AT THE END OF ASSESSEE. IT WAS CLEARLY MENTIONED IN THE SAID LETTER THAT ON RECEIPT OF DRAFT ORDER, THE ASSESSEE MAY WITHIN 30 DAYS OF THE RECEIPT OF DRAFT ORDER EITHER FILE ACCEPTANCE OF VARIATION AS PROPOSED IN THE ORDER OR FILE OBJECTIONS TO THE VARIATION TO THE DRP OR TO THE UNDERSIGNED. HOWEVER, THE ASSESSING OFFICER ALSO ISSUED DEMAND NOTICE UNDER SECTION 156 OF THE ACT DATED 28.02.2014 AND ALSO ISSUED NOTICE UNDER SECTION 274 R.W.S. 271 OF ITA NO. 566 /P U N/20 1 5 CO NO. 27 /P U N/201 7 7 THE ACT. THE ASSESSEE ON UNDERSTANDING THAT IT WAS DRAFT ASSESSMENT ORDER FILED OBJ ECTIONS BEFORE THE DRP ON 07.04.2014 I.E. WITHIN THE TIME ALLOWED UNDER THE STATUTE. HOWEVER, THE SAID OBJECTIONS OF ASSESSEE WERE NOT CONSIDERED BY THE DRP AND THE SAME WERE REJECTED ON THE SURMISE THAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS FINAL ASSESSMENT ORDER SINCE THE ASSESSING OFFICER HAD ALSO ISSUED DEMAND NOTICE UNDER SECTION 156 OF THE ACT AND SHOW CAUSE NOTICE UNDER SECTION 274 R.W.S. 271 OF THE ACT FOR LEVY OF PENALTY. THE DRP OBSERVED THAT SINCE THE ASSESSMENT ORDER PASSED BY THE ASSE SSING OFFICER WAS FINAL ASSESSMENT ORDER, IT DID NOT HAVE ANY JURISDICTION TO ISSUE ANY DIRECTIONS ON SUCH FINAL ASSESSMENT ORDER. AFTER RECEIVING THE DRPS ORDER, THE ASSESSEE FILED AN APPLICATION BEFORE THE ASSESSING OFFICER FOR NECESSARY ACTION. THE A SSESSING OFFICER IN REPLY, VIDE LETTER DATED 30.01.2015 STATED THAT THE DRP HAD CLEARLY MENTIONED THAT THE ORDER PASSED ON 28.02.2014 WAS FINAL ORDER AND NOT DRAFT ORDER, SO THE ASSESSING OFFICER DOES NOT HAVE ANY JURISDICTION OVER THE CASE. 7. IN ORDER TO ADJUDICATE THE ISSUE, REFERENCE NEEDS TO BE MADE TO THE PROVISIONS OF SECTION 144C OF THE ACT. UNDER THE PROVISIONS OF SECTION 144C OF THE ACT, IT IS PROVIDED THAT WHERE THE ASSESSING OFFICER PROPOSES TO MAKE, ON OR AFTER 01.10.2009, ANY VARIATION IN THE INCOME OR LOSS RETURNED, WHICH IS PREJUDICIAL TO THE INTEREST OF ASSESSEE, THEN THE ASSESSING OFFICER SHALL IN THE FIRST INSTANCE FORWARD THE DRAFT OF THE PROPOSED ORDER OF ASSESSMENT TO THE ELIGIBLE ASSESSEE. UNDER SUB - SECTION (2) OF SECTION 144C OF THE ACT ON RECEIPT OF THE DRAFT ORDER, THE ELIGIBLE ASSESSEE SHALL WITHIN 30 DAYS OF THE RECEIPT, FILE HIS ACCEPTANCE OF THE VARIATION TO THE ASSESSING OFFICER OR FILE HIS OBJECTIONS, IF ANY, TO SUCH VARIATION WITH THE DISPUTE RESOLUTION PANEL AND THE ASSE SSING OFFICER. UNDER SUB - SECTION (3) OF SECTION 144C OF THE ACT, THE ASSESSING OFFICER SHALL COMPLETE THE ASSESSMENT ON THE BASIS OF DRAFT ORDER IF THE ASSESSEE INTIMATES TO THE ASSESSING OFFICER THE ACCEPTANCE OF THE VARIATION OR NO OBJECTIONS ARE RECEIV ED WITHIN PERIOD SPECIFIED IN SUB - SECTION (2) OF SECTION 144C OF THE ACT. THEREAFTER, THE ASSESSING OFFICER IS EMPOWERED TO PASS THE ASSESSMENT ORDER WITHIN ONE MONTH FROM THE END OF MONTH, IN WHICH THE ACCEPTANCE IS RECEIVED OR THE PERIOD OF FILING OBJEC TIONS UNDER SUB - SECTION (2) OF SECTION 144C OF THE ACT EXPIRES. UNDER SUB - SECTION (5) OF SECTION 144C OF THE ACT, IT IS PROVIDED THAT THE DISPUTE RESOLUTION PANEL SHALL IN CASE WHERE OBJECTION IS RECEIVED UNDER SUB - SECTION (2) ISSUE SUCH DIRECTIONS AS IT THINKS FIT FOR THE GUIDANCE OF THE ASSESSING OFFICER TO ENABLE HIM TO COMPLETE THE ASSESSMENT. UPON RECEIPT OF THE SAID DIRECTIONS, THE ASSESSING OFFICER SHALL IN CONFORMITY WITH THE SAME, COMPLETE THE ASSESSMENT WITHOUT PROVIDING ANY FURTHER OPPORTUNITY OF BEING HEARING TO THE ASSESSEE WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH SUCH DIRECTION IS RECEIVED, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTION 153 OR 153B OF THE ACT, AS PER SUB - SECTION (13) TO SECTION 144C OF THE ACT. IN V IEW OF THE PROVISIONS OF SECTION 144C OF THE ACT IMPLIEDLY WHERE THE TPO PROPOSES ANY VARIATION IN THE INCOME OR LOSS RETURNED BY THE ASSESSEE, WHICH IS PREJUDICIAL TO THE INTEREST OF ASSESSEE, THE ASSESSING OFFICER SHALL IN THE FIRST INSTANCE FORWARD THE DRAFT OF THE PROPOSED ASSESSMENT ORDER TO THE ASSESSEE AND THEREAFTER, IF NO OBJECTIONS ARE RECEIVED AND / OR THE ASSESSEE FILES HIS ACCEPTANCE TO THE VARIATION TO THE ASSESSING OFFICER, THEN THE ASSESSING OFFICER IS EMPOWERED TO COMPLETE THE ASSESSMENT WI THIN ONE MONTH FROM THE END OF THE MONTH THEREOF. IN CASE, THE ASSESSEE FILES HIS OBJECTION BEFORE THE DRP AND WHERE THE SAID PANEL ISSUES DIRECTIONS AS IT THINKS FIT, THEN THE ASSESSING OFFICER ON RECEIPT OF SUCH DIRECTIONS SHALL COMPLETE THE ASSESSMENT IN CONFORMITY WITH SUCH DIRECTIONS. IN VIEW OF THE SAID PROVISIONS OF THE ACT, THE COMPLIANCE TO SECTION 144C OF THE ACT IS MANDATORY IN ALL SUCH CASES, WHERE THE TPO PROPOSES VARIATION IN THE INCOME OR LOSS RETURNED, WHICH IS PREJUDICIAL TO THE INTERESTS OF ASSESSEE. ONLY AFTER COMPLYING WITH THE CONDITIONS LAID DOWN IN SECTION 144C OF THE ACT, THE ASSESSING OFFICER IS EMPOWERED TO PASS THE ORDER UNDER SECTION 143(3) R.W.S. ITA NO. 566 /P U N/20 1 5 CO NO. 27 /P U N/201 7 8 144C OF THE ACT COMPLETING THE ASSESSMENT ON SUCH ENHANCED INCOME OR VARIATION IN THE LOSS RETURNED BY THE ASSESSEE. 8. THE HONBLE MADRAS HIGH COURT IN THE CASE OF VIJAY TELEVISION WRIT PETITION NOS.1526 AND 1527 OF 2014 & M.P. NOS.1 AND 1 OF 2014, IT WAS HELD THAT NON - PASSING OF DRAFT ASSESSMENT ORDER AFTER ADJUSTMENT MADE BY THE TP O RENDERS PROCEEDINGS NULL & VOID BY OBSERVING AS UNDER: - UNDER SECTION 144C(1) OF THE ACT, WITH EFFECT FROM 1 ST OCTOBER 2009, THE ASSESSING OFFICER HAS TO MANDATORILY ISSUE A DRAFT ASSESSMENT ORDER IF THERE IS A PROPOSED VARIATION TO THE RETURN WHICH AR E PREJUDICIAL TO THE ELIGIBLE ASSESSEE. THE FACT THAT THE PETITIONER IS AN ELIGIBLE ASSESSEE IS NOT IN DISPUTE. WHILE SO, UNDER SECTION 144C(2) OF THE ACT, THE ELIGIBLE ASSESSEE HAS THE OPTION, EITHER TO ACCEPT THE VARIATION OR TO FILE THEIR OBJECTIONS B EFORE THE DRP AND SUCH OPTION HAS TO BE EXERCISED WITHIN 30 DAYS. ON SUCH OBJECTIONS FILED BY THE ASSESSEE, THE DRP SHALL ISSUE APPROPRIATE DIRECTION FOR THE GUIDANCE OF THE ASSESSING OFFICER UNDER SECTION 144C(5) OF THE ACT. IT IS ONLY THEREAFTER, THE A O IS BOUND TO PASS A FINAL ORDER OF ASSESSMENT IN COMPLIANCE WITH THE DIRECTIONS ISSUED BY THE DRP UNDER SECTION 144C(3) OF THE ACT. IN THE PRESENT CASE, WITHOUT FOLLOWING THE ABOVE MANDATORY PROCEDURE, THE AO HAS PASSED THE ORDER OF ASSESSMENT ON 26.03.2 013 AND SUBSEQUENTLY ISSUED A CORRIGENDUM ON 15.04.2014 TO RECTIFY THE MISTAKE COMMITTED IN PASSING THE FINAL ORDER OF ASSESSMENT INTER ALIA TO TREAT IT AS A DRAFT ASSESSMENT ORDER. THIS COURSE OF ACTION ADOPTED BY THE SECOND RESPONDENT IS CONTRARY TO THE MANDATORY PROVISIONS CONTAINED IN THE ACT AND THE CORRIGENDUM ISSUED BY THE AO COULD NOT CURE THE DEFECT. THE VERY FACT THAT THE ASSESSING OFFICER HAS SIGNED THE ORDER OF ASSESSMENT AND ALSO ASSESSED THE AMOUNT PAYABLE BY THE ASSESSEE HAS BECOME COMPLETE AND IT CANNOT BE SIMPLY TREATED AS A DRAFT ASSESSMENT ORDER OR IT CAN BE RECTIFIED BY ISSUING THE CORRIGENDUM. IN FACT, PURSUANT TO THE ORDER OF ASSESSMENT UNDER SECTION 143C, DEMAND WAS ALSO MADE FOR PAYMENT OF THE AMOUNT AND SUCH DEMAND HAS NOT BEEN WI THDRAWN BY THE SECOND RESPONDENT EVEN AFTER ISSUING THE CORRIGENDUM. EVEN AS PER THE WEBSITE OF THE DEPARTMENT, THE DEMAND MADE TO THE PETITIONER COMPANY CONTINUES TILL DATE AND THEREFORE, THE FINAL ORDER AS WELL AS THE THE CORRIGENDUM ISSUED BY THE SECON D RESPONDENT ARE VITIATED BY ERRORS APPARENT ON THE FACE OF THE RECORD AND THEY ARE LEGALLY NOT SUSTAINABLE. 9. THE SIMILAR ISSUE HAD ARISEN BEFORE THE PUNE BENCH OF TRIBUNAL IN AGFA INDIA PVT. LTD. VS. ACIT IN ITA NOS.341/PN/2014 AND 1072/PN/2014, RELAT ING TO ASSESSMENT YEAR 2008 - 09, ORDER DATED 28.10.2015 AND REFERENCE WAS MADE TO THE DECISION OF THE HONBLE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD IN M/S. ZUARI CEMENTS LTD. VS. ACIT IN WP NO.5557/2012, VIDE JUDGMENT DATED 21.02.2013 AND THE HONBLE SU PREME COURT IN ACIT VS. M/S. ZUARI CEMENT LTD. VIDE SPECIAL LEAVE PETITION CC NO.16694/2013, JUDGMENT DATED 27.09.2013 AND IT WAS HELD AS UNDER: - 20. THE HONBLE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD IN M/S. ZUARI CEMENTS LTD. VS. ACIT (SUPRA) ON SI MILAR ISSUE WHERE AFTER RECEIPT OF THE ORDER PASSED BY THE TPO UNDER SECTION 92CA(3) OF THE ACT, THE ASSESSING OFFICER HAD PASSED THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT RAISING A DEMAND OF RS.27,40,71,913/ - WITHOUT GIVING AN OPPORTUNITY TO TH E ASSESSEE UNDER SECTION 144C OF THE ACT, OBSERVED THAT WHERE THE ASSESSING OFFICER PROPOSES TO MAKE ON OR AFTER 01.10.2009, ANY VARIATION IN THE INCOME OR LOSS RETURNED BY THE ASSESSEE, THEN NOTWITHSTANDING TO THE CONTRARY CONTAINED IN THE ACT, HE SHALL F IRST PASS ITA NO. 566 /P U N/20 1 5 CO NO. 27 /P U N/201 7 9 THE DRAFT ASSESSMENT ORDER, FORWARD THE SAME TO THE ASSESSEE AND AFTER ASSESSEE FILES HIS OBJECTIONS, IF ANY, THE ASSESSING OFFICER SHALL COMPLETE THE ASSESSMENT WITHIN ONE MONTH, IN VIEW OF THE PROVISIONS OF SECTION 144C OF THE ACT. IT WAS FURT HER OBSERVED THAT THE ASSESSEE IS ALSO GIVEN AN OPTION TO FILE AN OBJECTION BEFORE THE DRP, IN WHICH THE LATTER CAN ISSUE DIRECTIONS FOR THE GUIDANCE OF ASSESSING OFFICER TO ENABLE HIM TO COMPLETE ASSESSMENT. WHERE THE ASSESSING OFFICER ACCEPTED THE VARIA TION SUBMITTED BY THE TPO WITHOUT GIVING THE PETITIONER ANY OPPORTUNITY TO OBJECT TO IT AND PASS THE ASSESSMENT ORDER, IT WAS HELD BY THE HONBLE HIGH COURT OF A.P THAT THE IMPUGNED ORDER OF ASSESSMENT WAS CLEARLY CONTRARY TO SECTION 144C OF THE ACT AND WA S WITHOUT JURISDICTION, NULL AND VOID. THE OBJECTION OF THE REVENUE THAT THE CIRCULAR NO.5/2010 OF THE CBDT WHICH LAID DOWN THAT THE PROVISIONS OF SECTION 144C OF THE ACT SHALL NOT APPLY FOR THE ASSESSMENT YEAR 2008 - 09 AND WOULD ONLY APPLY FROM ASSESSMENT YEAR 2010 - 11 AND LATER YEARS WAS HELD TO BE NOT TENABLE WHERE THE LANGUAGE OF SUB - SECTION (1) OF SECTION 144C OF THE ACT REFERRED TO THE CUTOFF DATE OF 01.10.2009 INDICATES THE INTENTION OF LEGISLATURE TO MAKE IT APPLICABLE. THE HONBLE HIGH COURT OF A.P FURTHER HELD THAT THE CIRCULAR NO.5/2010 ISSUED BY THE CBDT STATING THAT SECTION 144C(1) OF THE ACT WOULD APPLY ONLY FROM ASSESSMENT YEAR 2010 - 11 AND SUBSEQUENT YEARS AND NOT FROM ASSESSMENT YEAR 2008 - 09 WAS CONTRARY TO THE EXPRESSED LANGUAGE OF THE SECTI ON AND THE SAID VIEW OF THE REVENUE WAS HELD TO BE NOT ACCEPTABLE. THE HONBLE HIGH COURT OF A.P THEREAFTER HELD THAT THE IMPUGNED ORDER OF ASSESSMENT DATED 23.12.2011 PASSED BY THE RESPONDENT WAS CONTRARY TO THE MANDATORY PROVISIONS OF SECTION 144C OF TH E ACT IS DECLARED AS ONE WITHOUT JURISDICTION, NULL AND VOID AND UNENFORCEABLE. THE HONBLE HIGH COURT OF ANDHRA PRADESH HELD AS UNDER: - IN THIS VIEW OF THE MATTER WE ARE OF THE VIEW THAT THE IMPUGNED ORDER OF ASSESSMENT DT. 23.12.2011 PASSED BY THE RES PONDENT IS CONTRARY TO THE MANDATORY PROVISIONS OF S.144C OF THE ACT AND IS PASSED IN VIOLATION THEREOF. THEREFORE, IT IS DECLARED AS ONE WITHOUT JURISDICTION, NULL AND VOID AND UNENFORCEABLE. CONSEQUENTLY, THE DEMAND NOTICE DATED 23.12.2011 ISSUED BY TH E RESPONDENT IS SET ASIDE. 21. THE HONBLE SUPREME COURT (SUPRA) IN ACIT VS. ZUARI CEMENTS LTD. (SUPRA) HAD DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE DEPARTMENT UPON HEARING THE COUNSEL. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE CON TENDED THAT SINCE THE SAID SPECIAL LEAVE PETITION WAS DISMISSED AFTER HEARING THE COUNSEL AND THE VIEW TAKEN BY THE HONBLE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD HAS BEEN APPROVED BY THE APEX COURT AND ANY ORDER CONTRADICTING THE CONDITIONS LAID DOWN I N SECTION 144C OF THE ACT IS NULL AND VOID AND UNENFORCEABLE IN LAW. 22. FURTHER, THE DELHI BENCH OF TRIBUNAL IN THE CASE OF CAPSUGEL HEALTHCARE LIMITED IN ITA NO.1356/DEL/2012, VIDE ORDER DATED 30.09.2014 HAVE UPHELD THE SIMILAR VIEW THAT FAILURE TO P ASS DRAFT ASSESSMENT ORDER AFTER TPOS ORDER RENDERS PROCEEDINGS VOID. SHOW CAUSE NOTICE CANNOT BE QUOTED WITH DRAFT ASSESSMENT ORDER. 10. FURTHER, THE HONBLE BOMBAY HIGH COURT IN INTERNATIONAL AIR TRANSPORT ASSOCIATION VS. DCIT (SUPRA) HAVE ALSO DOWN THE SIMILAR PROPOSITION AND HELD AS UNDER: - ITA NO. 566 /P U N/20 1 5 CO NO. 27 /P U N/201 7 10 4. THE PETITIONER HAD CONSEQUENT TO THE ASSESSMENT ORDER DATED 23 RD MARCH 2015 FILED ITS OBJECTION IN TERMS OF SECTION 144C(2) OF THE ACT TO THE DISPUTE RESOLUTION PANEL (DRP). BY AN ORDER DATED 7 TH OCTOBER, 2015, THE DRP REFUSED TO PASS ANY DIRECTION ON THE OBJECTIONS BECAUSE THE OBJECTIONS HAD BEEN FILED IN RESPECT OF A FINAL ORDER UNDER SECTION 143(3) OF THE ACT AND NOT IN RESPECT OF THE DRAFT ASSESSMENT ORDER PASSED UNDER SECTION 144C(1) OF THE ACT. THE ORDER DATED 7 TH OCTOBER, 2015 OF THE DRP HOLDS THAT ITS JURISDICTION IS ONLY TO ENTERTAIN OBJECTIONS WITH REGARD TO DRAFT ASSESSMENT ORDER PASSED UNDER SECTION 144C(1) OF THE ACT. 5. HOWEVER, IT IS PERTINENT TO NOTE THAT THE ORDER DATED 7 TH OCTOBER, 2015 OF THE DRP IN PARAGRAPH (3) THEREOF RECORDS THAT THERE IS NO DISPUTE THAT THE ASSESSEE IS A FOREIGN COMPANY. THIS POSITION IS UNDISPUTED EVEN BEFORE US. THEREFORE, IN VIEW OF SECTION 144C(15) OF THE ACT WHICH DEFINES ELIGIBLE ASSESSEE TO WHOM SECTION 1 44C(1) OF THE ACT APPLIES TO INTER ALIA MEAN ANY FOREIGN COMPANY. THEREFORE, A DRAFT ASSESSMENT ORDER UNDER SECTION 144C(1) OF THE ACT IS MANDATED BEFORE THE ASSESSING OFFICER PASSES A FINAL ORDER UNDER SECTION 143(3) OF THE ACT IN CASE OF ELIGIBLE ASSESS EE. AN DRAFT ASSESSMENT ORDER PASSED UNDER SECTION 144C(1) OF THE ACT BESTOWS CERTAIN RIGHTS UPON AN ELIGIBLE ASSESSEE SUCH AS TO APPROACH THE DRP WITH ITS OBJECTIONS TO SUCH A DRAFT ASSESSMENT ORDER. THIS IS FOR THE REASON THAT AN ELIGIBLE ASSESSEES GR IEVANCE CAN BE ADDRESSED BEFORE A FINAL ASSESSMENT ORDER IS PASSED AND APPELLATE PROCEEDINGS INVOKED BY IT. HOWEVER, THESE SPECIAL RIGHTS MADE AVAILABLE TO ELIGIBLE ASSESSEE UNDER SECTION 144C OF THE ACT ARE RENDERED FUTILE, IF DIRECTLY A FINAL ORDER UNDE R SECTION 143(3) OF THE ACT IS PASSED WITHOUT BEING PRECEDED BY DRAFT ASSESSMENT ORDER. 6. IN THE ABOVE VIEW, THE ASSESSMENT ORDER DATED 23 RD MARCH, 2015 PASSED BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 2012 - 13 IS COMPLETELY WITHOUT JURISDICTION. THIS IS SO AS IT HAS NOT BEEN PRECEDED BY A DRAFT ASSESSMENT ORDER. HENCE, THE FOUNDATIONAL/BASIC ORDER VIZ. THE ASSESSMENT ORDER DATED 23 RD MARCH, 2015 IS SET ASIDE AND QUASHED AS BEING WITHOUT JURISDICTION. CONSEQUENT ORDERS PASSED ON RECTIFICATION APP LICATION AS WELL AS ON PENALTY ARE ALSO QUASHED AND SET ASIDE BEING UNSUSTAINABLE. 11. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS PLACED RELIANCE ON THE RATIO LAID DOWN BY THE INTERNATIONAL AIR TRANSPORT ASSOCIATION VS. DCIT (SUPRA) AND T HE HONBLE MADRAS HIGH COURT IN THE CASE OF VIJAY TELEVISION WRIT PETITION NOS.1526 AND 1527 OF 2014 & M.P. NOS.1 AND 1 OF 2014 VIS - - VIS. WHEREAS THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE STRONGLY OPPOSED AND POINTED OUT THAT THE ASSESSING OFFICER HAS SENT THE DRAFT ASSESSMENT ORDER WHEREIN THE LETTER CLEARLY SAYS THAT IT IS DRAFT ASSESSMENT ORDER. HE POINTED OUT THAT THE DRP HAD MIS - INTERPRETED AND THE ISSUE MAY BE SENT BACK TO THE FILE OF DRP. HE ALSO POINTED OUT THAT THE FACTS BEFORE TH E HONBLE BOMBAY HIGH COURT WERE DIFFERENT AND THE SAID PROPOSITION IS NOT APPLICABLE. WE FIND NO MERIT IN THE PLEA OF LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. THE ASSESSING OFFICER PASSED THE ORDER ON 28.02.2014 ALONG WITH WHICH IT ALSO ISSU ED THE DEMAND NOTICE AND SHOW CAUSE NOTICE FOR LEVY OF PENALTY. IN OTHER WORDS, THE ASSESSING OFFICER HAS CRYSTALLIZED THE DEMAND IN THE CASE OF ASSESSEE. WHEREAS, AS PER THE PROVISIONS OF THE ACT WHERE THE ASSESSING OFFICER PROPOSES TO VARY THE INCOME I N THE HANDS OF ASSESSEE, THERE WAS REQUIREMENT TO ISSUE SHOW CAUSE NOTICE TO THE ASSESSEE TO THE SAID ADDITIONS, BY WAY OF DRAFT ASSESSMENT ORDER. THE DEMAND DOES NOT GET CRYSTALLIZED IN DRAFT ASSESSMENT ORDER. UNDOUBTEDLY, THE ASSESSING OFFICER HAD ITA NO. 566 /P U N/20 1 5 CO NO. 27 /P U N/201 7 11 ISSU ED COVERING LETTER WHERE IT SAYS THAT IT IS DRAFT ASSESSMENT ORDER BUT IN SPIRIT, IT HAD FINALIZED THE ASSESSMENT, WHEREIN THE DEMAND WAS CRYSTALLIZED AND DEMAND NOTICE WAS ISSUED TO THE ASSESSEE. THE ASSESSING OFFICER HAS NOT FOLLOWED THE CORRECT PROCEDU RE AS PROVIDED IN THE STATUTE AND HAS PASSED FINAL ASSESSMENT ORDER WITHOUT PASSING DRAFT ASSESSMENT ORDER WHICH IS AGAINST THE PROVISIONS OF THE ACT AND HENCE, THE SAME IS INVALID IN LAW. RELIANCE IS PLACED ON THE RATIO LAID DOWN BY THE HONBLE BOMBAY HI GH COURT IN INTERNATIONAL AIR TRANSPORT ASSOCIATION VS. DCIT (SUPRA) AND THE HONBLE MADRAS HIGH COURT IN VIJAY TELEVISION PVT. LTD. VS. DRP & OTHERS (SUPRA) AND THE HONBLE HIGH COURT OF ANDHRA PRADESH IN M/S. ZUARI CEMENTS LTD. VS. ACIT (SUPRA). WE HOLD THAT THE ASSESSMENT ORDER PASSED IN THE CASE IS INVALID AND THE SAME IS SET ASIDE. SINCE WE HAVE DECIDED THE PRELIMINARY ISSUE IN FAVOUR OF ASSESSEE, THE OTHER GROUNDS OF APPEAL AGAINST THE ADDITIONS MADE BECOME ACADEMIC AND THE SAME ARE DISMISSED. 1 3 . THE FACTS BEFORE US ARE SIMILAR TO THE FACTS BEFORE THE TRIBUNAL IN SOKTAS INDIA (P) LTD. VS. ACIT (SUPRA). IN THE FACTS OF PRESENT CASE ALSO, THE DEMAND GOT CRYSTALLIZED ON PASSING OF THE DRAFT ASSESSMENT ORDER, WHEREIN THE ASSESSING OFFICER HAD ISSUED D EMAND NOTICE IN ITNS - 150 AND HAD ALSO INITIATED PENALTY PROCEEDINGS. UNDOUBTEDLY, THE SAID ASSESSMENT WAS FRAMED AS DRAFT ASSESSMENT BUT IN ACTUAL FACT, THE ASSESSING OFFICER HAD MADE THE ASSESSMENT IN THE HANDS OF ASSESSEE BY NOT ONLY ASSESSING THE INCOM E BUT ALSO DETERMINING THE DEMAND PAYABLE . IN THE CASE OF DRAFT ASSESSMENT ORDER , PROPOSED ADDITIONS ARE TO BE MADE AND THE ASSESSEE IS SHOW CAUSED EITHER TO ACCEPT THE SAME OR FILE THE OBJECTIONS BEFORE THE DRP. HOWEVER, IN THE PRESENT FACTS, THERE WAS NOT A PROPOSAL FOR MAKING ADDITION BUT FINAL ASSESSMENT ORDER WAS PASSED. UNDOUBTEDLY, THE ASSESSING OFFICER SAID THAT HE IS PASSING DRAFT ASSESSMENT ORDER AND THE ASSESSEE WAS ALSO AT LIBERTY TO FILE THE OBJECTIONS BEFORE THE DRP OR ACCEPT THE SAME , BUT IN ACTUAL FACT, THE ORDER PASSED BY THE ASSESSING OFFICER WAS COMPLETE ASSESSMENT ORDER WHICH IS NOT ENVISAGED UNDER SECTION 143(3) R.W.S. 144C OF THE ACT. ACCORDINGLY, WE HOLD THAT DRAFT ASSESSMENT ORDER PASSED IN THE CASE IS INVALID IN LAW. THUS, THE C ROSS OBJECTION NO.2 RAISED BY THE ASSESSEE IS ALLOWED. SINCE WE HOLD THE ASSESSMENT ORDER TO BE INVALID IN LAW, ITA NO. 566 /P U N/20 1 5 CO NO. 27 /P U N/201 7 12 THEN ALL THE OTHER ISSUES BECOME ACADEMIC IN NATURE. CONSEQUENTLY, THE CROSS OBJECTION NO.1 AND THE APPEAL FILED BY THE REVENUE BECOMES ACADEMIC. 1 4 . IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED AND THE CROSS OBJECTIONS OF ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 14 TH DAY OF JUNE , 201 7 . SD/ - SD/ - ( ANIL CHATURVEDI ) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 14 TH JUNE , 201 7 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT ; 2. THE RESPONDENT; 3. THE DRP , PUNE ; 4. THE DIT (TP/IT), PUNE ; 5. THE DR A , ITAT, PUNE; 6. GUARD FILE . / BY ORDER, // TRUE COPY // / ASSISTANT REGISTRAR, , / ITAT, PU NE